Why You Should Always Put Your Easement in Writing
Imagine moving into your new property, only to discover that what you thought was your driveway is actually your neighbor's driveway. The prior owner only had an oral agreement to use it. Even if your neighbor seems agreeable to your continued use, things can quickly go wrong. Disputes arise between neighbors for countless reasons, and you could easily lose your ability to use the driveway.
Easements are common, but they are often misunderstood and poorly documented. Without a properly drafted and recorded easement agreement, you risk losing essential access to your property—often at the worst possible time.
To ensure your uninterrupted and legal use of the driveway or any other shared access, it's crucial to have the easement in writing and recorded with the county recorder's office. Here's what you need to know to protect your rights.
What is an Easement?
An easement is a legal right to use another person's property for a specific purpose. It can be created orally or in writing, but a written agreement is far more secure. Easements are often necessary to access property—such as using a driveway that crosses a neighbor's land.
The person receiving the easement is permitted to use the specified area for the agreed purpose, while the property owner retains all other ownership rights, except as restricted by the easement. For example, if you have an easement to use a shared driveway, the property owner cannot block your access.
Why You Need a Written Easement
While "handshake deals" between neighbors are common, relying on an unwritten agreement is risky. Without a written easement, misunderstandings about the scope or duration of use are almost inevitable. A properly drafted express easement—a written easement—should include:
- Identification of the properties involved: Specify the property granting the easement and the property benefiting from it.
- Purpose and location: Clearly describe what the easement allows and where it applies.
- Maintenance, repairs, and improvements: Detail who is responsible for upkeep and how costs will be shared.
- Liability: Specify any limitations or responsibilities related to the easement's use.
- Modification and termination: Outline how changes can be made and under what circumstances the easement can be terminated.
After preparing the easement, all parties should sign it before a notary public and record it with the county recorder's office where the property is located. Recording the easement ensures it becomes part of the public record, which is crucial for notifying future buyers of its existence. A recorded easement will appear on a buyer's title report, which title companies produce for review before a property purchase.
The Dangers of Oral Agreements
Oral agreements, while convenient, are fraught with potential problems:
- Memory and Interpretation. Over time, memories fade, and interpretations of verbal agreements can diverge. What starts as a friendly understanding can quickly turn into a heated dispute when recollections differ.
- Changes in Ownership. Oral agreements are particularly vulnerable when property ownership changes. A new owner is not bound by a handshake deal made by the previous owner and has no obligation to honor it.
- Difficulty of Proof. Without a written record, proving the existence and terms of an oral agreement can be extremely difficult. 'He said, she said' scenarios often arise, leading to expensive and time-consuming legal battles with uncertain outcomes.
- Scope of Use. Oral agreements often lack needed specificity. For example, a verbal agreement to use a driveway may not address who is responsible for maintenance or snow removal.
Enforcing Your Easement
If you ever need to enforce an easement against a neighbor, courts will generally apply contract law principles and interpret the easement based on its written terms and the parties' original intent. However, if the easement terms are unclear or incomplete, courts will rely on Oregon case law to determine how it applies.
In Oregon, ORS 105.170-105.185 governs easements created after January 1, 1992. These statutes primarily address:
- Obligations to maintain the easement area.
- How maintenance costs are shared.
- Consequences for failing to uphold maintenance obligations.
Importantly, these statutory obligations can be modified by a properly written and recorded easement agreement.
Why Proper Documentation Matters
Even with a written easement, disputes can arise. If a disagreement occurs over the use of an easement, law enforcement often treats it as a civil matter and will refuse to intervene. This is why having a properly drafted and recorded easement is essential.
When an easement is poorly drafted or outdated, resolving disputes can be difficult and expensive. It's always best to formalize the agreement in writing and record it with the county—even if you do so years after a handshake agreement.
The Bottom Line
An oral agreement may work—until it doesn't. Without a properly drafted and recorded easement, you risk losing your rights to use critical parts of your property. Taking the time to create a clear, enforceable agreement is essential to protect your interests.
If you're dealing with an easement issue or want to ensure your agreement is legally enforceable, consulting with an experienced attorney is the best move you can make. A well-drafted easement agreement can save you time, money, and stress down the road.
The Importance of Written Property Easements
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
